NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NOS. A-4299-15T4 A-4350-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ESTERLIN M. TORRES
Defendant-Appellant. ___________________________________
JONATHAN TORRES,
Argued February 26, 2018 – Decided August 21, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3185.
Louis H. Miron argued the cause for appellant Esterlin M. Torres. Steven M. Gilson argued the cause for appellant Jonathan Torres.
Kevin J. Hein, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Kevin J. Hein, of counsel and on the brief).
Appellants filed pro se supplemental briefs.
PER CURIAM
Defendants Esterlin and Jonathan Torres appeal from the
denial of their petitions for post-conviction relief (PCR) without
an evidentiary hearing. The brothers raise substantially similar
arguments in their collateral challenges to their convictions for
kidnapping, aggravated assault and related crimes. Defendants
assert they received ineffective assistance of trial and appellate
counsel. We consolidate their appeals for this opinion, and affirm
in part, reverse in part and remand for an evidentiary hearing.
I.
We presume familiarity with the facts, which we extensively
reviewed in our opinions affirming the convictions on direct
appeal, State v. Torres, No. A-4500-09 (App. Div. Feb. 14, 2012)
(Torres I), and on motions for reconsideration, State v. Torres,
No. A-4500-09 (App. Div. Aug. 7, 2013) (Torres II).
In Torres II, we declined to address defendants' newly-minted
claims of trial court error, because they failed to raise those
before the trial court or in their direct appeal. See Torres II,
2 A-4299-15T4 slip op. at 13-15. Specifically, defendants argued the trial
court erred by: (1) granting the jury unfettered access in the
jury room to Joshua Calero's incriminating videotaped statement;
(2) giving the jury a dictionary definition of "substantial" in
response to a jury question about the legal meaning of the word
with respect to the kidnapping charge; and (3) failing to give a
unanimity charge to assure that all jurors agreed as to the
asportation or confinement element of kidnapping. Id. at 13. We
commented that whether the trial and appellate counsel were
ineffective in not raising those points of error was not before
us to decide. Id. at 17.
That issue is before us now. In their PCR petitions,
defendants contend their trial and appellate counsel were
deficient in failing to raise those three issues. They also
contend that trial and appellate counsel were ineffective because
they did not challenge ex parte contacts between the judge and the
jury, and the court's failure to conduct an arraignment-status
conference after a superseding indictment was returned.
The PCR court rejected defendants' petition as a mere
reframing of the Torres II claims "couch[ed] . . . in terms of
ineffective assistance of counsel." The PCR court held that Rules
3:22-3 and -4 barred defendants' claims, because defendants could
have raised them on direct appeal. The court also inferred that
3 A-4299-15T4 we deemed defendants' claims to lack merit, because we declined
to address them.
Defendants now appeal from the PCR court's decision. With
minor wording and numbering variations, they raise the following
identical issues (quoting from Jonathan's counseled brief to avoid
repetition):
POINT I
THE PCR COURT ERRED BY PROCEDURALLY BARRING DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
POINT II
TRIAL AND APPELLATE COUNSEL DEPRIVED DEFENDANT OF EFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel/Initial Appellate Counsel Failed To Object/Raise The Trial Court's Allowing The Jury To Have Unfettered Access To Joshua Calero's Video-Recorded Statement In The Jury Room; Therefore, The Aggravated Assault Convictions Regarding Calero Must Be Reversed Or, In The Alternative, Defendant Must Be Afforded An Evidentiary Hearing Because He Established A Prima Facie Case Of Counsels' Ineffectiveness.
B. Trial Counsel/Initial Appellate Counsel Failed To Object/Raise The Trial Court's Erroneous Kidnapping Charge Regarding The Definition Of "Substantial"; Therefore, Defendant's Kidnapping Convictions Must Be Reversed Or, In The Alternative, Defendant Must Be Afforded An Evidentiary Hearing Because He Established A Prima Facie Case Of Counsels' Ineffectiveness.
4 A-4299-15T4 C. Trial Counsel/Initial Appellate Counsel Failed To Object/Raise The Need For A Specific Unanimity Charge Regarding Kidnapping; Therefore, Defendant's Kidnapping Convictions Must Be Reversed Or, In The Alternative, Defendant Must Be Afforded An Evidentiary Hearing Because He Established A Prima Facie Case Of Counsels' Ineffectiveness.
D. Trial Counsel/Appellate Counsel Failed To Object/Raise The Trial Court's Ex Parte Communications With The Jury; Therefore, Defendant's Convictions Must Be Reversed Or, In The Alternative, Defendant Must Be Afforded An Evidentiary Hearing Because He Established A Prima Facie Case Of Counsels' Ineffectiveness.
E. Trial Counsel/Appellate Counsel Failed To Request/Raise The Need For An Arraignment/Status Conference Regarding The Superseding Indictment; Therefore, Defendant's Convictions Must Be Reversed Or, In The Alternative, Defendant Must Be Afforded An Evidentiary Hearing Because He Established A Prima Facie Case Of Counsels' Ineffectiveness.
POINT III
TRIAL AND APPELLATE COUNSELS' CUMULATIVE ERRORS MANDATE THAT DEFENDANT'S CONVICTIONS BE REVERSED OR, IN THE ALTERNATIVE, THAT DEFENDANT BE AFFORDED AN EVIDENTIARY HEARING.1
1 Point II(E) of Jonathan's brief appears as Point III in Esterlin's brief; and Point III of Jonathan's brief appears as Point IV in Esterlin's brief.
5 A-4299-15T4 Esterlin raises the following additional point, numbered
Point II(E) of his counseled brief:
The Trial Court Abused Its Discrepion [sic] In Denying Esterlin's Motion to Interview The Trial Jurors Which Would Have Enabled The PCR Court To Determine The Substance Of The Trial Judge's Ex Parte Communications With The Jurors And Each Of The Juror's Perception Of The Trial Judge's Communications.
In supplemental pro se briefs, the brothers argue:
THE PCR COURT'S FINDINGS SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THIS CASE SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL, BECAUSE APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO PROVIDE THE APPELLATE DIVISION A COMPLETE RECORD WITH RESPECT TO EX-PARTE COMMUNICATIONS BETWEEN THE TRIAL JUDGE AND A DELIBERATING JURY, INCLUDING UNRECORDED TELEPHONE DISCUSSIONS WITH THE JURORS, FROM THE JUDGE'S PERSONAL HOME PHONE.
A. THE PCR COURT'S FINDINGS SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THIS CASE SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL, BECAUSE TRIAL COUNSEL AND INITIAL APPELLATE COUNSEL WERE INEFFECTIVE IN FAILING TO (1) OBJECT TO THE TRIAL COURT'S EX-PARTE COMMUNICATIONS, (2) REQUEST TO VOIR DIRE THE JURORS, AND (3) RAISE THIS SIGNIFICANT ISSUE ON DIRECT APPEAL.
B. THE PCR COURT'S RULING DENYING POST CONVICTION RELIEF SHOULD BE REVERSED AND THIS CASE SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL, BECAUSE PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, A PUBLIC TRIAL BY AN IMPARTIAL JURY AND DUE
6 A-4299-15T4 PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.
II.
As the trial court declined to hold an evidentiary hearing,
we review defendants' PCR petitions de novo. See State v. Harris,
181 N.J. 391, 421 (2004). We consider the facts in the light most
favorable to defendants. See State v. Porter, 216 N.J. 343, 354
(2013); R. 3:22-10(b).
A.
Addressing defendants' first point on appeal, we agree their
ineffective assistance of counsel claims are not procedurally
barred by Rules 3:22-3 and -4. Defendants allege the points of
error were not raised at the trial or appellate level because
their counsel failed to provide them with minimally effective
assistance of counsel, as guaranteed by the Constitution. Notably,
in response to defendants' new points of trial error, first raised
in their petition for certification, the State argued they were
"best raised" in a PCR petition. Torres II, slip op. at 6.
"Under New Jersey case law, petitioners are rarely barred
from raising ineffective-assistance-of-counsel claims on post-
conviction review." State v. Preciose, 129 N.J. 451, 459 (1992).
Although defendants could have raised the underlying trial errors
in the proceedings resulting in the conviction, see R. 3:22-4,
7 A-4299-15T4 they could not have raised their attorneys' ineffectiveness to
present those errors. "Our courts have expressed a general policy
against entertaining ineffective-assistance-of-counsel claims on
direct appeal because such claims involve allegations and evidence
that lie outside the trial record." Preciose, 129 N.J. at 460.
Consequently, "[i]neffective-assistance-of-counsel claims are
particularly suited for post-conviction review because they often
cannot reasonably be raised in a prior proceeding." Ibid. (citing
R. 3:22-4).
We have previously explained that ineffective assistance of
counsel claims are not barred by Rule 3:22-4:
[I]neffective assistance of counsel claims, particularly ineffective assistance of appellate counsel, are congruous with the exceptions to the procedural bar of R. 3:22-4 because they (1) implicate issues that could not have been reasonably raised in prior proceedings; (2) involve infringement of constitutional rights; or (3) present exceptional circumstances involving a showing of fundamental injustice.
[State v. Moore, 273 N.J. Super. 118, 125 (App. Div. 1994).]
Furthermore, although Rule 3:22-3 provides that a PCR proceeding
"is not . . . a substitute for appeal from conviction," it has
been observed that "such claims as ineffective assistance of trial
counsel are ordinarily not barred by this rule since direct appeal
does not provide an appropriate remedy." Pressler & Verniero,
8 A-4299-15T4 Current N.J. Court Rules, cmt. on R. 3:22-3 (2018) (citing
Preciose).
In sum, defendants' ineffective assistance of counsel claims
are not procedurally barred.
The court also misinterpreted as a decision on the merits,
our previous refusal to address points of error that were not
timely raised. Although the trial court correctly observed that
we have the discretion to address issues sua sponte, we generally
decline to do so. See State v. Arthur, 184 N.J. 307, 327 (2005)
(stating appellate courts should be "hesitant to raise an issue
sua sponte that the parties have not had an opportunity to
address"). Consequently, our recognition of the unanimity charge
issue on direct appeal, see Torres I, slip op. at 41 n.9, did not
imply we decided it lacked merit. Nor did we imply a negative
view of the Calero video issue. See Torres II, slip op. at 16
n.6. We simply declined to decide the issues.
We also part company with the PCR court's conclusion that
defendants' petitions were barred because they failed to comply
with Rule 3:22-10(c), which requires that "[a]ny factual assertion
that provides the predicate for a claim of [PCR] must be made by
an affidavit or certification pursuant to Rule 1:4-4 and based
upon personal knowledge of the declarant . . . ."
9 A-4299-15T4 Each defendant verified the allegations in his PCR petition,
stating, "I . . . have reviewed the allegations of the above [PCR]
Petition and do verify upon my personal knowledge that they are
true and correct." That sufficed as a verification. See Monmouth
Cnty. Div. of Social Servs. v. P.A.Q., 317 N.J. Super. 187, 193
(App. Div. 1998) (describing form of verification required by Rule
1:4-7). Rule 1:4-4(b) prescribes the wording of a certification
"[i]n lieu of the affidavit, oath or verification" required by
these rules . . . ." (Emphasis added). Although defendants did
not submit an "affidavit or certification pursuant to Rule 1:4-
4," R. 3:22-10(c), their technical non-compliance does not justify
rejection of their petitions. See State v. Jones, 219 N.J. 298,
312-13 (2014) (rejecting State argument that technical non-
compliance with Rule 3:22-10(c) justified rejecting petition);
State v. Brewster, 429 N.J. Super. 387, 396 (App. Div. 2013)
(considering facts presented in petition as if "they had been
properly presented by means of a sworn statement").
B.
In reviewing the merits of defendants' petitions, we apply
the familiar two-pronged Strickland standard. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
52 (1987). To establish a prima facie case of ineffective
assistance of counsel, defendants must show their counsel's
10 A-4299-15T4 performance "fell below an objective standard of reasonableness,"
and "the deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687-88. Prejudice is defined as a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694. "The right to effective assistance" includes that of
appellate counsel, and the same Strickland test applies to claims
that such assistance was denied. State v. O'Neil, 219 N.J. 598,
610-11 (2014).
We consider first whether trial and appellate counsel were
ineffective in failing to object to, or to raise on appeal, the
court's use of a dictionary definition of "substantial" in
responding to a jury question about kidnapping. We conclude that
defendants have established a prima facie case of ineffective
assistance of counsel, warranting a remand for an evidentiary
hearing.
The jury convicted defendants of three counts of kidnapping
– one count for each occupant in Fabian Muniz's vehicle, including
Muniz. The State presented evidence that defendants, while one
possessed a gun, jumped into Muniz's car at 40th Street in Camden
after shooting at Calero; instructed Muniz to drive until they
told him to stop; and ultimately got out at 36th Street. Torres
I, slip op. at 6-8. The jury had to decide whether defendants,
11 A-4299-15T4 with the purpose "[t]o facilitate the commission of any crime or
flight thereafter," unlawfully removed the victims a "substantial
distance" or confined them for a "substantial period." See
N.J.S.A. 2C:13-1(b)(1) (defining kidnapping).
In its initial instructions to the jury, the trial judge
relied on the model charge on kidnapping. The charge instructs
that if the victim is not unlawfully removed from his or her home
or business, then the State must prove that the victim was moved
a "'substantial distance' from the vicinity from which the victim
was removed," or was unlawfully confined for a "substantial
period." Model Jury Charge (Criminal), "Kidnapping (N.J.S.A.
2C:13-1(b)(1) to (3))" (2007).
The model charge further explains that a "'substantial
distance' is not measured in feet, yards, or miles, nor by any
other standard of linear measurement. Rather, a 'substantial
distance' is significant, in that it is more than incidental to
the underlying crime and substantially increases the risk of harm
to the victim." Ibid. The charge also explains that a
"'substantial period' is not measured in seconds, minutes, or
hours, nor by any other standard based strictly on the passage of
time." Ibid. Like a "substantial distance," a "'substantial
period' is one that is significant, in that it is more than
12 A-4299-15T4 incidental to the underlying crime and substantially increases the
risk of harm to the victim." Ibid.
The court, reading the instruction to the jury, informed the
jurors that the "increased risk of harm must not be trivial."
Thus, the court continued, "If the victim is removed only a slight
distance from the vicinity from which he or she was removed and
such movement does not create the isolation and increased risk of
harm that are at the heart of the kidnapping statute, then you
should not convict the defendant of the kidnapping charge."
Likewise, "[i]f the victim is confined for only a slight period
of time and such confinement does not create the isolation and
increased harm that are at the heart of kidnapping statute, then
you should not convict the defendant of the kidnapping charge."
During deliberations, the jury asked the court whether it
could "look up word in dictionary, legal definition of
substantial." Unable to find a definition in Black's Law
Dictionary, the judge – with defense counsel's consent – first
proposed to inquire whether the jury sought the definition with a
particular instruction in mind; and absent such clarification, to
read the first definition of "substantial" from Merriam Webster's
Collegiate Dictionary (10th ed. 1993). However, before giving the
jury a chance to respond to his inquiry, the judge proceeded to
supply the dictionary definition: "[T]he primary definition of the
13 A-4299-15T4 word 'substantial' is as follows: 'Consisting of or relating to
substance; not imaginary or illusory.'" The judge then repeated
the definition.2
Reflecting continuing difficulty, the jury submitted another
note, stating that it needed the definition of "substantial" to
answer the jury verdict sheet's questions on kidnapping. In
response, the judge repeated the model jury charge, but then
concluded by reciting the dictionary definition again, stating,
"because I believe that may be helpful." Defendants' trial
attorneys did not register an objection, and their appellate
attorneys did not challenge the trial court's instruction on direct
appeal.
We conclude the trial judge erred in using the dictionary
definition of "substantial." It deviated from the model charge
and prevailing case law on the elements of kidnapping, and diluted
the nature of proofs required of the State.
As noted, asportation for a "substantial distance," or
confinement for a "substantial period" is an essential element of
kidnapping, if removal is not from the home or business. N.J.S.A.
2 Although the model charge equates "substantial" with "significant," the court omitted the third dictionary definition, which states: "3 . . . b: considerable in quantity : significantly large . . . ." Merriam Webster's Collegiate Dictionary (10th ed. 1993).
14 A-4299-15T4 2C:13-1(b); see also State v. Jackson, 211 N.J. 394, 414 (2012)
(discussing elements of "non-ransom kidnapping"). The meaning of
"substantial" is critical. "The crime of kidnapping sounds simple,
but . . . defining it 'is a task of special subtlety.'" State v.
La France, 117 N.J. 583, 586 (1990) (quoting Model Penal Code §
212.1 at 221 (Official Draft and Revised Comments) (1980)).
In State v. Masino, 94 N.J. 436 (1983), the Court considered
whether "substantial distance" should be defined in linear or
qualitative terms. Finding a "substantial distance" is "one that
isolates the victim and exposes him or her to an increased risk
of harm," the Court determined it was distinct from the linear
measurement of the distance a victim may have travelled during his
or her confinement. Id. at 445-46.
In assessing whether a victim has been removed a "substantial
distance from the vicinity where he is found," a jury necessarily
must also define the "vicinity" under the facts of the case. A
vicinity is not a fixed point; it is a less well-defined area.
The statute requires that a victim "be moved from the 'vicinity,'
rather than the 'place' where he is found so as 'to preclude
kidnapping convictions based on trivial changes of location having
no bearing on the evil at hand.'" Id. at 445 (quoting Model Penal
Code § 212.1 cmt. at 16 (Tentative Draft No. 11 (1960)).
15 A-4299-15T4 In La France, the Court addressed the confinement element,
stating that a "substantial period" is "criminally significant in
the sense of being more than merely incidental to the underlying
crime," considering "not only . . . the duration of the
confinement, but also . . . the 'enhanced risk of harm resulting
from the [confinement] and isolation of the victim [or others].'"
117 N.J. at 594 (quoting Masino, 94 N.J. at 447). In reference
to both asportation and confinement, the "enhanced risk [to the
victim] must not be trivial." Ibid.; Masino, 94 N.J. at 447. As
"not every movement or confinement of a victim is a kidnapping,"
La France, 117 N.J. at 586, the nature of the confinement of the
victims in this case was of great importance. See also Jackson,
211 N.J. at 418-19 (affirming conviction on both asportation and
confinement grounds, where defendant pointed a gun at a taxi
driver's chest and forced him to drive eight-tenths of a mile in
a city).
Our Supreme Court has held that "[t]he jury should be
instructed that if the victim is removed only a slight distance
from the vicinity where he or she is found and such movement does
not create the isolation and increased risk of harm that are at
the heart of N.J.S.A. 2C:13-1(b), then it should not convict."
Masino, 94 N.J. at 447. The model charge complies with this
direction, and includes a similar direction with respect to a
16 A-4299-15T4 "victim . . . confined for only a slight period of time and such
confinement does not create the isolation and increased risk of
harm that are at the heart of the kidnapping statute . . . ."
Model Jury Charge (Criminal), "Kidnapping (N.J.S.A. 2C:13-1(b)(1)
to (3))".
Notwithstanding this established authority, the court
instructed the jury three times that "substantial" meant merely
"not imaginary or illusory." Any measurable distance or period,
trivial or significant, would meet that definition of
"substantial." Thus, by that definition, asportation of any
distance, or confinement for any period of time, would satisfy
essential elements of the offense.
Given the court's clear error, defendants have met their
prima facie burden under Strickland's two prongs to establish that
both trial and appellate counsel were deficient in failing to
object and to raise the issue on appeal, and that defendants
suffered prejudice.
As for the first prong, on this record, we can fathom no
strategic reason for trial counsel's acquiescence in the court's
use of the "not imaginary or illusory" formulation. The definition
was contrary to the established caselaw and the model charge, and
weakened the State's burden. Although an appellate advocate is
not obliged to challenge every aspect of defendants' trial, O'Neil,
17 A-4299-15T4 219 N.J. at 612, a clearly erroneous jury instruction is often a
fruitful avenue for appeal, given the oft-stated principle that
"[e]rroneous instructions are poor candidates for rehabilitation
as harmless, and are ordinarily presumed to be reversible error."
State v. Afanador, 151 N.J. 41, 54 (1997); see also State v.
McKinney, 223 N.J. 475, 495-96 (2015); State v. Bunch, 180 N.J.
534, 541-42 (2004); State v. Jordan, 147 N.J. 409, 422-23 (1997).
As for the second prong, as just noted, erroneous jury charges
are presumed to be reversible error, particularly when they pertain
to essential elements of a crime. See State v. Koskovich, 168
N.J. 448, 508 (2001) (stating the Court has "consistently held
that incorrect charges on substantive elements of a crime
constitute reversible error" (quoting State v. Rhett, 127 N.J. 3,
7 (1992))). The evidence in support of the substantial distance
and substantial confinement elements in this case was strong, but
not overwhelming. Concededly, there was evidence that Jonathan
pointed a gun at Muniz's back, much like the defendant who pointed
the gun at the victim's chest in Jackson, 211 N.J. at 418-19. See
Torres I, slip op. at 6. Also, another car soon started following
Muniz. Id. at 7. Such evidence could support a finding that
defendants exposed Muniz and his two friends to "an enhanced risk
of harm." Jackson, 211 N.J. at 419.
18 A-4299-15T4 Despite this evidence, the jury obviously struggled with the
concept of substantial distance and substantial time as expressed
in the model charge. We reject the State's argument that delivery
of the model charge rendered the dictionary definition
insignificant. The model charge puzzled the jury. Rather than
amplify or explain the concepts in the model charge, the dictionary
definition contradicted them.
The jury may have been unconvinced that defendants pointed a
gun, or that Muniz and the others faced an increased risk of harm.
Notably, Muniz gave a statement, later disavowed, that he told
defendant they could get in his car. Torres I, slip op. at 11.
Calero alleged in one statement that Muniz was defendant's getaway
driver. Id. at 9. Muniz admitted defendants were not strangers.
Id. at 12. Muniz and his passengers were taken just a few blocks.
The jury may also have expansively viewed the "vicinity" from
where they were removed. Significantly, the jury acquitted
defendants of carjacking, declining to find that defendants
threatened the occupants of the vehicle or purposely or knowingly
put an occupant or driver in fear of immediate bodily injury in
the course of committing the unlawful taking of a motor vehicle.
See N.J.S.A. 2C:15-2 (defining carjacking).
We conclude defendants have made a prima facie showing that
there is a "reasonable probability that, but for counsel's
19 A-4299-15T4 unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. "The [Strickland]
Court made clear that 'reasonable probability' is not the same as
more likely than not; rather 'reasonable probability is a
probability sufficient to undermine confidence in the outcome.'"
State v. L.A., 433 N.J. Super. 1, 14 (App. Div. 2013) (quoting
Strickland, 466 U.S. at 694). Applying that standard, there is a
reasonable probability that the jury, properly instructed, would
have concluded that the substantiality element was not satisfied,
and opted instead to convict defendants of third-degree criminal
restraint, N.J.S.A. 2C:13-2, or false imprisonment, N.J.S.A.
2C:13-3, a disorderly persons offense.
Therefore, we reverse the trial court's order as it relates
to the alleged ineffective assistance of counsel pertaining to the
definition of "substantial" in the kidnapping instruction. We
remand for a hearing, at which trial and appellate counsel may be
questioned about whether they had a compelling strategic or
tactical reason for not objecting to the court's supplemental
instruction, and for not raising the issue on direct appeal. See
R. 3:22-10(b).
C.
We briefly address defendants' claims that their trial and
appellate counsel were ineffective by failing to request a specific
20 A-4299-15T4 unanimity charge related to the asportation and confinement
elements of kidnapping; and by failing to object to the jury's
access in the jury room to the Calero video.
1.
We alluded to the specific unanimity issue in Torres I, slip
op. at 41 n.9, noting that defendants had not raised it. They now
contend a specific unanimity charge was required – in other words,
that all jurors must agree that the asportation element was
satisfied, or all jurors must agree that the confinement element
was satisfied – and their counsel were ineffective in failing to
assert that position.
To provide effective assistance of counsel, an attorney is
not obliged "to anticipate that an otherwise valid jury instruction
would later be deemed improper . . . ." Funchess v. Wainwright,
772 F.2d 683, 691 (11th Cir. 1985). Although a creative advocate
may offer novel legal theories, the constitutional right to
effective assistance of counsel "does not require counsel to
forecast changes or advances in the law . . . ." Lilly v. Gilmore,
988 F.2d 783, 786 (7th Cir. 1993). "[C]ounsel is normally not
expected to foresee future new developments in the law . . . ."
Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. 1981). Thus, courts
"have rejected ineffective assistance claims where a defendant
'faults his former counsel not for failing to find existing law,
21 A-4299-15T4 but for failing to predict future law' and have warned 'that
clairvoyance is not a required attribute of effective
representation.'" Bullock v. Carver, 297 F.3d 1036, 1052 (10th
Cir. 2002) (quoting United States v. Gonzalez-Lerma, 71 F.3d 1537,
1542 (10th Cir. 1995)).
In view of these principles, we need not decide whether
unanimity as to asportation or confinement is required by law.
Trial and appellate counsel's failure to urge that position was
not ineffective because we are aware of no case – and defendants
cite none – that directly holds such unanimity is required; and
the model jury charge does not adopt that view.3 Rather, the model
jury charge repeatedly utilizes the phrase "and/or" in discussing
the asportation and confinement elements. See Model Jury Charge
(Criminal), "Kidnapping (N.J.S.A. 2C:13-1(b)(1) to (3))"
(instructing jurors to consider four factors to determine whether
the "removal . . . and/or confinement . . . was substantial"); see
also State v. R.B., 183 N.J. 308, 325 (2005) (stating that "insofar
as consistent with and modified to meet the facts adduced at trial,
3 Were unanimity required, the Supreme Court in Jackson arguably would have been unwilling to tolerate the uncertainty as to whether the jury in that case found asportation or confinement. See Jackson, 211 N.J. at 414 (affirming conviction although the Court could not "discern whether the jury based its verdict on the victim's removal by a 'substantial distance,' or his 'substantial confinement'").
22 A-4299-15T4 model jury charges should be followed and read in their entirety
to the jury"). The verdict sheet utilized "or," which correctly
simplified the "and/or" phrasing, as no one argues that a unanimous
jury must find both asportation and confinement.
In sum, the failure to raise the specific unanimity issue
does not constitute ineffective assistance of counsel. A specific
unanimity charge would have extended existing law, and revised the
model charge.
2.
We next consider defendants' argument that their trial and
appellate attorneys were ineffective because they failed to
contend that the jury's unrestricted access to the Calero video
violated State v. Burr, 195 N.J. 119, 134 (2008) (disapproving
"allowing a jury to have unfettered access to videotaped witness
statements" in the jury room during deliberations); see also State
v. A.R., 213 N.J. 542, 560 (2013) (expressly disapproving
"unfettered access by the jury to video-recorded statements of
witnesses or a defendant during its deliberations").
"The danger posed is that the jury may unfairly emphasize
. . . videotaped statements over other" evidence and testimony
presented at trial. Burr, 195 N.J. at 134; see also A.R., 213
N.J. at 546. To combat any prejudice to the defense, the Court
23 A-4299-15T4 required, among other precautions, "any playback of the videotape
must occur in open court . . . ." Burr, 195 N.J. at 135.
Here, the playback of the videotaped pretrial statement of
defendants' assault victim did not occur in open court. The jurors
asked to review the statement, and were provided audio visual
equipment to view the tape in the jury room. Torres II, slip op.
at 7-8, 16 n.6. Defendants' trial attorneys did not object. In
fact, Esterlin's attorney consented to it. Id. at 16 n.6.
Defendants' appellate attorneys did not raise the issue on direct
Defendants argue those decisions could not have been
strategic, because the statement "dealt a fatal blow to the
defense." However, defendants did not provide a copy of the video
for our review. Conceivably, Calero's demeanor raised questions
about his credibility. Also, Calero contended, favorably to
defendants, that Muniz was defendants' planned getaway driver, not
their victim. Torres I, slip op. at 9. Perhaps it was a strategic
decision to permit the jury unfettered access to Calero's recorded
statement.
In any event, we need not decide whether defendants' attorneys
performed deficiently on this score, because defendants have not
demonstrated prejudice. See State v. Gaitan, 209 N.J. 339, 350
(2012) (stating courts are permitted to "examine first whether a
24 A-4299-15T4 defendant has been prejudiced, . . . and if not, to dismiss the
claim without determining whether counsel's performance was
constitutionally deficient"). The potential that the jury gave
undue weight to the recorded statement – the evil that the Burr
and A.R. rule is designed to combat – was reduced by the complete
playback of Calero's in-court testimony, which contradicted the
recorded statement.
In sum, we affirm the denial of PCR on the issue of the jury's
unfettered access to Calero's recorded statement.
D.
Defendants' remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part. Reversed in part. Remanded for an
evidentiary hearing on defendants' claims of ineffective
assistance of trial and appellate counsel, limited to their
failures with respect to the trial court's erroneous instruction
on the meaning of "substantial."
25 A-4299-15T4